Chief Judge Rader Upholds $345 million Jury Verdict for Patent Infringement

On May 1, 2013, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued an opinion in Versata Software Inc. v. SAP America Inc. affirming a jury verdict of infringement and damages by SAP for $345 million.  Chief Judge Rader authored the opinion.  The award includes $260 million for lost profits and $85 million for reasonable royalties for infringement of Versata Software’s claims covering its “hierarchical pricing engine” software.  The opinion is here.

Calculating lost profits: a monster of our own making?

Technology Transfer Tactics is currently advertising Calculating Lost Profit in IP and Patent Infringement Cases by Nancy J. Fannon ASA, CPA-ABV, MCBA. Published by Business Valuation Resources, this book is reportedly a 690 page hardback that will set you back US$329 + S&H if you buy it in the next ten days, whereupon the price rises to US$379. According to the promotional literature,

"Calculating Lost Profits in IP and Patent Infringement Cases brings together the comprehensive body of knowledge on lost profits damages and delivers a definitive resource for IP professionals, tech transfer execs, financial experts, and attorneys. Written by Nancy Fannon, owner of Fannon Valuation Group, and other industry leading experts, Calculating Lost Profits delivers a thorough analysis of current case law and valuation methodology that form the basis of damage awards in IP and patent infringement cases. It comes with 24/7 access to the online edition, which includes the full text of relevant court opinions, a searchable PDF version of the book, plus bonus content and updates as they are released".

I'm not familiar with this book (which, I'm sure, is very worthy) but can't help feeling that, if we've created a web of issues that take nearly 700 pages to expound, we have unleashed a monster of our own making. And how much of the lost profits are related to the cost of calculating how much profit has been lost? More seriously, we live in an era in which patents are commercially exploited -- and infringed -- on an international or global basis. Differentials in calculation as between major markets might lead to interesting forum-shopping questions. But if this book captures the necessary principles and approaches for calculation of lost profit in the US, where are its equivalents in other markets?